Fired air marshal will get new hearing

WASHINGTON (CNN) — A federal air marshal fired in 2006 for leaking information about air marshal travel cuts has won a victory before a federal court.

The U.S. Court of Appeals for the Federal Circuit on Friday ordered the case of Robert MacLean returned to a federal board to determine whether MacLean's disclosures deserve whistle-blower protection.

"My smile is so wide it's threatening my ears," said Tom Devine, a lawyer with the Government Accountability Project who has represented MacLean. Devine said he is "chomping at the bit" to argue that MacLean's leak was in the national interest, saying it may have helped prevent terrorist attacks on the United States.

The Transportation Security Administration declined comment, saying it is reviewing the decision.

MacLean, now a resident of Ladera Ranch, California, and a storm restoration contractor, said he hopes the decision will eventually lead to his return to the ranks of the Federal Air Marshal Service, which places armed, plain-clothes officers on commercial airplanes.

The case began in July of 2003, when MacLean, then based in Las Vegas, tipped off an MSNBC reporter that the TSA was suspending overnight missions just days after air marshals were briefed about a new "potential plot" to hijack U.S. airliners.

The agency planned the cutback -- which would have kept air marshals off most long-distance flights -- because it was running out of money at the end of the fiscal year.

The news caused an immediate uproar on Capitol Hill, with Sen. Charles Schumer, and then-Senators Hillary Rodham Clinton and John Kerry, among others, writing letters expressing concerns. The TSA retreated, killing the scheduling cuts before they went into effect.

A year later, MacLean appeared on "NBC Nightly News" -- in disguise and identified only as "Federal Air Marshal 'Mike'" -- to criticize the agency's dress policy, which, he said, made it easier for terrorists to identify the undercover air marshals.

But someone from the TSA recognized MacLean's voice and the agency ordered an investigation into MacLean for an "unauthorized media appearance." During that investigation, MacLean admitted he leaked the information to the media about the 2003 suspension of long-distance flights.

The agency fired MacLean in April of 2006, saying his leak was an unauthorized disclosure of "Sensitive Security Information," or SSI.

Supporters argued that MacLean brought to public light a TSA action that violated federal law, which mandates that the agency give priority to flights that present high security risks, specifically mentioning "nonstop, long distance flights." They say the information he gave was factual and that it ultimately protected passengers by changing a flawed policy.

MacLean argued the information he disclosed was not Sensitive Security Information, saying the TSA sent the information as a text message on his cell phone, instead of as an encrypted message on his password-protected pager. And it was not labeled SSI.

MacLean said his firing was retaliation for his union activities.

But the Merit System Protection Board said that even if the scheduling directive was not labeled SSI, deployment information was "within the definition of SSI." MacLean "admittedly knew that he was not permitted to tell anyone about (air marshal) scheduling, yet he did so anyway, and it could have created a significant security risk," the board said.

The board said there is "no direct evidence" the agency retaliated or discriminated against MacLean for his union activities.

On Friday, the appeals court held that MacLean had met the threshold of being eligible for whistle-blower protection. MacLean must now demonstrate that he reasonably believed that his disclosures "evidenced a substantial and specific danger to public health or safety."

"Frankly, that's a hearing we would relish because there's little question that his disclosures were worthy," said Devine. "Numerous members of Congress attacked (the travel cuts) as betraying the department's (responsibilities). The Department of Homeland Security said it was a mistake and canceled the orders less than 48 hours after his disclosure. They only corrected the mistake because of his disclosure."

Devine said the TSA has three options: appeal Friday's decision to the Supreme Court, defend the original case before the Merit System Protection Board or settle with MacLean. If the government takes no action, the case will automatically be returned to the MSPB for a hearing, he said.

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